Dismissed

U J Naijanya v. Smt. Alphonsa

Karnataka HC1 Mar 2024RSA/1511/2022

Case brief

AI extract

What is this about?

This judgment dismisses regular second appeals against decrees in a property dispute. The Court upheld the validity of registered sale deeds and rectification deeds executed by defendants in favour of the plaintiff, finding that the appellants failed to substantiate claims of fraud or lack of identity and could not impeach recorded instruments absent cogent evidence.

What did the court decide?

Appeals dismissed; decrees in favor of the plaintiff confirmed.

U J Naijanya Vs Smt. Alphonsa — Contract and Commercial Disputes | Karnataka HC (2024)

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NC: 2024:KHC:8739 RSA No. 1511 of 2022 C/W RSA No. 1510 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1511 OF 2022 (INJ)

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C/W

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REGULAR SECOND APPEAL NO. 1510 OF 2022

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IN R.S.A.NO.1511/2022:

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BETWEEN:

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U J NAIJANYA AGED ABOUT 25 YEARS D/O U R JAYAPRAKASH R/O SEEBINAKERE THIRTHAHALLI TOWN THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432

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…APPELLANT

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(BY SRI. LOKESH K.,ADVOCATE)

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Digitally signed by SUMA B N Location: High Court of Karnataka

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AND:

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SMT. ALPHONSA

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1. AGED ABOUT 51 YEARS W/O ALPHONSA DALMEDA R/O KOLIKAALUGUDDA SEEBINAKERE POST THIRTHAHALLI TOWN THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT -577 432.

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SRI U R JAYAPRAKASH AGED ABOUT 52 YEARS S/O RAGHUNATH GOWDA

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NC: 2024:KHC:8739 RSA No. 1511 of 2022 C/W RSA No. 1510 of 2022

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SMT. K L NAIDILE AGED ABOUT 43 YEARS W/O U R JAYAPRAKASH

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BOTH ARE R/AT SEEBINAKERE THIRTHAHALLI TOWN THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432

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…RESPONDENTS

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(BY SRI. PRADEEPA B V.,ADVOCATE FOR R1; SRI. VIJAYA KUMAR K., ADVOCATE FOR R2 & R3)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 27.07.2022 PASSED IN RA No.02/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, THIRTHAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.10.2018 PASSED IN OS No.36/2011 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, THIRTHAHALLI.

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IN RSA NO. 1510 OF 2022

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BETWEEN:

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SRI. U R JAYAPRAKASH AGED ABOUT 52 YEARS S/O RAGHUNATH GOWDA

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SMT K.L. NAIDILE AGED ABOUT 49 YEARS W/O U R JAYAPRAKASH

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BOTH ARE R/AT SEEBINAKERE, THIRTHAHALLI TOWN THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432.

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…APPELLANTS

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(BY SRI. VIJAYA KUMAR K.,ADVOCATE)

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3 - NC: 2024:KHC:8739 RSA No. 1511 of 2022 C/W RSA No. 1510 of 2022

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AND:

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SMT. ALPHONSA AGED ABOUT 51 YEARS W/O ALPHONSA DALMEDA R/O KOLIKAALUGUDDA SEEBINAKERE POST THIRTHAHALLI TOWN THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432.

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U J NAIJANYA AGED ABOUT 25 YEARS D/O U R JAYAPRAKASH R/O SEEBINAKERE THIRTHAHALLI TOWN THIRTHAHALLI TALUK SHIVAMOGGA DISTRICT - 577 432.

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…RESPONDENTS

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(BY SRI. PRADEEPA B V.,ADVOCATE FOR R1; SRI. LOKESH K., ADVOCATE FOR R2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 27.07.2022 PASSED IN RA NO.01/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, THIRTHAHALLI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.10.2018 PASSED IN OS NO.36/2011 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC, THIRTHAHALLI.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Appeal in RSA No.1510/2022 is by the defendant Nos.1 and 2 and Appeal in RSA No.1511/2022 is by the defendant No.3 being aggrieved by the judgment and decree dated 31.10.2018 passed in O.S.No.36/2011 on the file of the I Additional Civil Judge and JMFC, Thirthahalli, (hereinafter referred to as 'Trial Court' for short), which is confirmed by the judgment and orders dated 27.07.2022 passed in R.A.No.1/2019 and R.A.No.2/2019 on the file of the Senior Civil Judge and JMFC, Theerthalli (hereinafter referred to as 'First Appellate Court' for short).

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The above suit in O.S.No.36/2011 is filed by the plaintiff for relief of declaration that rectification deed executed by the defendants dated 04.04.2008 is null and void and not binding on the plaintiff in respect of 'B' schedule property and also for permanent injunction restraining the defendants 1 to 3 from interfering in any way in the peaceful possession and enjoyment of the suit

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NC: 2024:KHC:8739 RSA No. 1511 of 2022 C/W RSA No. 1510 of 2022

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schedule property including the right of way over the passage road on the western side of the boundaries to the suit schedule 'B' property by the plaintiff.

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Case of the plaintiff is that defendant Nos. 1 to 3 were the owners in possession of the suit schedule property bearing assessment No.603/1282/380, which is described as plaint 'A' schedule property. That in the year 2001-02, defendant Nos.1 to 3 had entered into a partition deed registered as a document No.848/2001-02 dividing the 'A' schedule property amongst themselves. That 'A' schedule property was divided and shares therein were allotted to defendant Nos.2 and 3. That defendant No.1

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was paid cash in lieu of his share. It is further case of the plaintiff that after the partition the defendant No.2 had sold the property measuring (85.3 + 72.3)/2 X (80.9+78.6)=6241 sq.ft. in favour of the plaintiff in terms of the deed of sale dated 27.03.2006. That the property purchased by the plaintiff is described as plaint 'B' schedule property. The said document was signed and

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executed by defendant Nos.1 and 2. A sketch delineating the property purchased by the plaintiff was enclosed with the deed of sale which form part and parcel of the said deed of sale.

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That subsequent to purchase of the property, plaintiff had applied for the katha of the property from Town Municipality and since there was error in mentioning the assessment number and measurement of the entire site, plaintiff requested defendant No.2 to execute rectification deed. Accordingly, a rectification deed bearing document No.958/2006-07 was also executed inserting the assessment number of the property as No.603/1/1282/1/380/1. That though rectification was carried out plaintiff was not able to have the katha changed in her name as the total extent of site which the plaintiff purchased was not mentioned properly. That the plaintiff had conveyed this to defendant No.2 and had requested to make necessary correction on this behalf. When things stood thus, to the shock and surprise of the

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plaintiff the defendant Nos. 1 to 3 had executed a deed of rectification amongst themselves in respect of deed of partition which was executed earlier vide document No.29/2008-09 without the knowledge of the plaintiff and without mentioning the alienation that was made by the defendant No.2 in favour of the plaintiff.

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It is contended that plaintiff purchased the

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property on the basis of partition deed in which the defendant No.2 had acquired plaint 'B' schedule property and any rectification to the same ought to have been with the knowledge and consent of the plaintiff. That defendants without disclosing the same had got the rectification deed executed amongst them. Further in collusion with the Town Municipality authority had also obtained change of katha of the property as per the rectification deed and that defendants thereafter were attempting to alienate the property to third parties to the detriment to the interest of the plaintiff. That on learning

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about the aforesaid aspect, plaintiff on 18.2.2011

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requested the defendant No.2 for effecting necessary arrangement to clear the title of the plaint 'B' schedule property purchased by her, which request was not acceded by the defendants constraining her to approach the Court.

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In response to the summons, defendant Nos. 1 to 3 appeared and denied all the plaint averments and sought for dismissal of the suit.

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Defendant No.1 had taken up the contention that defendant No.1 is not necessary party to the suit and he is not liable to any alleged transaction between plaintiff and defendant No.2. It is contended that defendant No.2 had approached plaintiff for some financial assistance and plaintiff and her husband had played fraud on the defendant No.2 and on misrepresentation had secured sale deed. It is contended that property as claimed by the plaintiff did not exist at all and plaintiff was never put in possession of any portion of the property. Hence, he sought for dismissal of the suit.

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Defendant No.2 in her written statement contended that even according to the plaintiff, only defendant No.2 had sold the property to the plaintiff. Neither defendant No.1 nor defendant No.3 were necessary or proper parties to the suit. It is contended that defendant No.2 was in urgent need of money and plaintiff and her husband were well acquainted with her and her husband. That at the request of the defendant No.2, plaintiff and her husband had agreed to lend some money provided defendant No.2 executed some documents in their favor nominally and by way of security for amount lent. That copies of some documents were furnished to the plaintiff and her husband and they had promised that the documents that would be prepared in the nature of mortgage that too nominally and husband of defendant No.2 had also attested said documents as a consenting witness. That the plaintiff and her husband had got prepared all documents and except attending office of Sub-Registrar's, defendant No.2 never had knowledge about the nature of the documents alleged to have been

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executed. That it is only after the suit, she came to know the document that was obtained by the plaintiff purported to be a sale deed. That contrary to the representation, the plaintiff and her husband had colluded and conspired and got prepared a document purporting to be a sale deed, but they are not successful in knocking of the property of the defendant No.2. That the alleged supplemental deed is a concocted and fraudulent document. That the defendant No.2 was taken to the Office of the Sub-Registrar and without her knowledge her signature have been taken on the document, which are void and fraudulent. Hence, she sought for dismissal of the suit.

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Defendant No.3 in her written statement

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contended that she was born on 02.08.1992 and has attained age of majority and she was not aware of any of the alleged transactions between plaintiff and the defendant No.2 and she is not a party to any documents executed between them. Hence, plaintiff was not entitled

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for any relief against her and sought for dismissal of the suit.

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Originally suit was filed for injunction and later by an amendment relief of declaration as noted above sought for.

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Based on the pleadings the Trial Court framed

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the following issues;

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"1. Whether the plaintiff proves that, she is in possession and enjoyment of the suit 'B' schedule property as on the date of filing of the suit?

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2. Whether the plaintiff further proves that, the alleged interference by the defendants over the suit 'B' schedule property?

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Whether the plaintiff is entitled for the relief of permanent injunction as prayed?

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What order or decree?

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ADDITIONAL ISSUES

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Whether the plaintiff proves that, the rectification deed executed between the defendants bearing registered document No.29/2008-09, dated:04-04-2008 is null and void and not binding on the plaintiff in respect of the suit schedule property?"

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Plaintiff examined herself as PW1 and exhibited 20 documents as Ex.P1 to P20. Two witnesses have been examined on behalf of defendants as DW.1 to DW.2. Three documents have been marked as Ex.D1 to Ex.D3.

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On appreciation of the pleadings and oral and documentary evidence, Trial Court answered the issue Nos. 1 to 3 and additional issue No.1 in the affirmative and consequently decreed the suit.

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Being aggrieved by the same, defendant No.1

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and 2 filed a regular appeal in R.A.No.1/2019 while defendant No.3 filed a separate regular appeal in R.A.No.2/2019.

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Considering the grounds urged by the defendant Nos. 1 and 2, The First Appellate Court framed the following points for its consideration in R.A.No.1/2019;

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"I. Whether the Trial Court is right in holding that Ex.P-01 and 02 are not concocted and there is no difference in the measurement and identification particulars of the property sold

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by defendant No.02 to the plaintiff, being mentioned in Ex.P.01, 02 and in the plaint submitted before the Trial Court and in Ex. P- 04-the rectification deed as well?

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II. Whether the Trial Court is right in holding that Ex.P-01 and 02 are not fraudulent and illegal documents and they strengthen the right of the plaintiff over the suit schedule property?

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III. Whether the Trial Court is right in holding that the rectification deed effected amongst the defendants No.02 and 03 dated: 04-042008, bearing its Registration No: 29/2008-09 does not bind the plaint and the same is null and void?

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IV. Whether the Trial Court is right in holding that the plaintiff is only enjoying the possession over the schedule property?

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V. Whether the Trial Court is right in holding that the defendants have got rectified the boundaries by virtue of Ex.P-04, of the properties fell to their shares in the earlier partition, by showing the property of the plaintiff also which was conveyed to her earlier by way of a sale vide Ex. P-01, same is illegal?

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VI. What order or decree?"

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and considering grounds urged by the defendant No.3 in

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R.A.No.2/2019, the First Appellate Court framed the following points for consideration;

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"I. Whether the Trial Court is right in holding that, the registered rectification deed executed

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amongst the defendants, bearing its No.29/2008-09 dated: 04-04-2008 is null and void it doesn't bind with plaintiff with respect to the suit 'B' schedule property?

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II. Whether the Trial Court is right in holding that, under Ex.P-04 which is subsequent to Ex.P-01 and 02, defendants have rectified the boundaries and they interchanged the shares allotted to defendants No.02 and 03, including the property sold by defendant no.02 to the plaintiff under Ex.P-01 and 02, illegally and without any information to her and therefore it is bad in law and defendant no.03 cannot question the Ex.P-01 and 02?

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III. Whether the Trial Court is right in holding that, Ex.P-04 includes a property which was sold to plaintiffs vide Ex.P-01 and 02 by defendant no.02 and defendants without having any right upon the same have included the said property in Ex.P-04?

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IV. Whether the Trial Court is right in holding that, the plaintiff has been able to prove the boundaries of the suit 'B' schedule property?

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V. Whether the Trial Court is right in holding that, the plaintiff is enjoying the possession over the suit 'B' schedule property?

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VI. What order or decree?"

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On re-appreciation of the material evidence, the

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First Appellate Court dismissed the appeals confirming the judgment and order passed by the Trial Court. Being aggrieved by the same, defendant Nos. 1 and 2 are before

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this Court in RSA No.1510/2022 and defendant No.3 is before this Court in RSA No.1511/2022.

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Sri. K. Vijaykumar and Sri. K. Lokesh, learned counsel appearing for the appellants in these matters submitted that;

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(a) the Trial Court and the First Appellate Court erred in granting the relief as sought for without adverting to the fact that there was no clear identity of the property being claimed by the plaintiff.

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(b) Referring to the description of the property provided in the partition deed at Ex.D2, sale deed at Ex.P1 and in the rectification deed at Ex.P4 and also the sketch enclosed to the deed of sale, learned counsel for the appellants submitted that discrepancy in describing the property on the southern side of the property in the deed of sale dated 27.03.2006 produced at Ex.P1 under which the plaintiff is claiming her right, title and interest in respect of schedule 'B' property cannot be disputed.

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side of the property, wherein the name of the defendant No.2 Smt.Nydile is shown, while in reality on the southern side the property of Ms.Nyjanya who is defendant No.3 ought to have been shown.

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(d) He submits that since there is a rectification carried out in the principal deed namely the partition deed at Ex.D2 and the same not having been challenged the Trial Court and the First Appellate Court ought to have been decreed the suit. He further contends that all that the rectification has

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done is by changing the northern and southern boundary of the property claimed by the plaintiff which is as per the actual fact in existence and same

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would not take away the right of the plaintiff.

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(e) Thus, it is contended that rectification deed would not cause any prejudice to the plaintiff that since the Trial Court and the First Appellate Court have

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granted relief as sought for which in the light of the law laid down by the Apex Court in the case of

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ANATHULA SUDHAKAR VS. BUCHI REDDY, (DEAD) BY LRS AND OTHERS reported in (2008),

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SCC 594, a relief of injunction could not have been granted when there is a dispute with regard to identity of the property giving raise to substantial question of law to be considered at the hands of this Court.

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Per contra, Sri.Pradeepa B.V, learned counsel

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for the respondent No.1 justifying the judgment and decree passed by the Trial Court and the First Appellate Court vehemently submitted that;

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(a) Conduct of the defendants have to be looked at. In that he submits that in the written statement defendants had denied the very execution of the deed of sale and had alleged that the said deed of sale was fabricated and concocted document.

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(b) The rectification to the deed of partition which was carried out by the defendants as per Ex.P4 was with a malafide intention of depriving the plaintiff of her right, title and interest in respect of the 'B' schedule property which she purchased from defendant No.2 acting upon the deed of partition dated 07.11.2001 as per Ex.D2.

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(c) Since the deed of sale dated 27.03.2006 at Ex.P1 executed by the defendant No.2 in favour of the plaintiff conveying 'B' schedule property, description of which is explicitly provided in the schedule as well as in the sketch enclosed there with, there was no confusion or ambiguity of any nature whatsoever. Thus, he submits the Trial Court and the First Appellate Court are justified in decreeing the suit and no substantial question of law would arise for consideration as contended in the appeal.

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Heard. Perused the records.

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Admitted facts of the matter is that schedule 'A' property originally belonged to defendant Nos.1 to 3 who by entering into a deed of partition on 07.11.2001 as per Ex.D2 had divided the same, in terms of which a portion with building was allotted to the share of defendant No.2 and another portion was allotted to the share of the defendant No.3. Defendant No.1 did not retain any portion of the property as he stated to have received cash in lieu of his share. Plaintiff claims that defendant No.2 had executed deed of sale dated 27.03.2006 as per Ex.P1 conveying the 'B' schedule property. The description of the property subject matter of the said sale deed is as that of 'B' schedule property which is as under;

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Schedule - B

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Part and parcel of the vacant site in the above schedule 'A' property measuring to an extent of (85.3 + 72.3)/2 feet X (80.9+78.6)/2 feet totally measuring 6241 sq. feet out of the total measurement of the schedule 'A' property including right of way over the passage road of 10 feet X 107.9 feet on the western side of the property which connects the property to the main road on northern side and bounded on:-

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East by : Rice Mill of Maruthi Road,

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West by	:	Passage road measuring 10 feet X 107.9 feet.
North by	:	Property presently belong to U.J.Naijanya and
		thereafter Thirthahalli- Anandapura main road,
South by	:	Property presently belongs to K.L.Nadile.

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A sketch enclosed forming part of said deed of sale also specifically demarcate and delineate the boundaries and dimensions which substantially tallies with the boundaries and description of the schedule 'B' property as above.

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Further a rectification or supplemental deed of sale as per Ex.P2 was executed on 07.12.2006 by defendant No.2 in favour of plaintiff inserting the assessment number to the property. These two documents have remained unchallenged till date.

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Though a feeble attempt is made by the defendants in their written statements alleging that the plaintiff who had lend financial assistance to the defendant No.2 had obtained the said document fraudulently and though such serious allegations have been made in the

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written statement, the same have remained

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unsubstantiated.

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The dispute apparently has arose when the defendants have got the rectification deed executed on 04.04.2008 as per Ex.P4 in terms of which the boundaries and description of the property shared between defendant Nos. 2 and 3 has been rectified which reads as under;

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�ೕಲ�ಂಡ ಎ�.ಆ�. ಸಂ�ೆ�: 848/2001-02 ರ ಎರಡ�ೇ ��ಾ� ಅನುಸೂ�ಯ ಸ��ನ ಚಕು�ಬಂ!ಗಳನು$ %ೆಳಕಂಡಂ&ೆ �ದು(ಪ* +ಾ*%ೊಂರು&ೆ�ೕ,ೆ . ಪ-ವ/%ೇ: 01ೕ2,ಾ� ರವರ ಸ�ತು�, ಪ04ಮ%ೆ�: ಅಬು(6 ರ7ಾ8 �ಾ9ೇ: ರವರ ಮ�ೆ ಮತು� ಖು< ಜ>ೕನು, ಉತ�ರ%ೆ� :ಯು.@. �ೈಜನ� ರವರ »¸ÉìUÉ ಅ¸É¸ÉäAmï ಸಂ�ೆ�: 603/1282/380 ರBC DಾEF %ೊGHರುವ ಸ��ನ Dಾಗ ಮತು� I.7ೆ . +ಾರು� JಾK ರವರ ಧನಲMN Oೕ,ಾ >6 ಕಟHಡ, ದMಣ%ೆ� : ಚಂದ1Rೇಖ� ರವರ ಅ%ೆ DಾSಾಯು�, ಆEರುತ�Tೆ .

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�ೕಲ�ಂಡ ಎ�.ಆ�. ಸಂ�ೆ�: 848/2001-02 ರ ಮೂರ�ೇ ��ಾ� ಅನುಸೂ�ಯ ಸ��ನ ಚಕು�ಬಂ!ಗಳನು$ %ೆಳಕಂಡಂ&ೆ �ದು(ಪ* +ಾ*%ೊಂ*ರು&ೆ�ೕ,ೆ . ಪ-ವ/%ೆ�: I.@. +ಾರು� JಾK ರವರ zsÀನ$ಲMN Uೕ,ಾ >6 ಕಟHಡ, ಪ04ಮ%ೆ� :ಅV6 Wಾ9ೇ: ರವರ ಮ�ೆ , ಉತ�ರ%ೆ� :�ೕಥ/ಹZ[ ಅನಂದಪ\ರಂ ಮುಖ� ರ�ೆ�, ದMಣ%ೆ� : PÉ.J¯ï. £ÉÊ¢¯É AiÀÄªÀgÀ »¸ÉìUÉ C¸É¸ÉäAmï ಸಂSÉå: 603/1282/380 ರBC ]DಾEF %ೊGHರುವ ಸ��ನ Dಾಗ, ಆEರುತ�Tೆ .

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22 -

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NC: 2024:KHC:8739 RSA No. 1511 of 2022 C/W RSA No. 1510 of 2022

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�ೕಲ�ಂಡ ಎ�.ಆ�. ಸಂ�ೆ�: 848/2001-02 ರ ಎರಡು ಮತು� ಮೂರ�ೇ ��ಾ� Cನುಸೂ�ಗಳBC ಎರಡು ಮತು� ಮೂರ�ೇ ��ಾ�Tಾರರ ��ೆ�Sೆ ]DಾEF %ೊGHರುವ ಸ��ನ ಅಳ&ೆಗಳBC ^ಾವ\Tೇ �ದು(ಪಗZರುವ_ಲC. 9ಾSೆ`ೕ, ಸ_1 ]Dಾಗ ಪತ1ದ ಇ�ಾ�ವ\Tೇ ]ಷಯಗಳBC wzÀÄÝಪಗZರವ_ಲC.

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The Trial Court has dealt with the contents of

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the documents at Exs.P1 and P2 and P4 and also the attendant and incidental circumstances of the said documents coming into existence in extenso in its judgment and decree, more particularly, in paragraphs 12, 13, 14, 15 of its judgment. The Trial Court has also adverted to the deposition of PW1 and deposition of defendants witness. Though DW.1 has sought to contend

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that her husband had obtained signature on the sale deed stating the same to be the lease deed, the Trial Court has referred to the said statement with that of the contentions

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raised in the written statement, wherein she has stated that she had affixed her signature in the document given by the plaintiff believing the same to be the mortgaged deed.

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The Trial Court has also taken into note of the fact that the defendant No.2 in her cross-examination has admitted property allotted to the share under Ex.D2 has originally been allotted to her share of the defendant No.1 through partition deed as per Ex.D1. Trial Court referring to the deposition of the DW.2 with regard to location of the building facing the main road and the vacant property situated behind the said building, has come to the conclusion that defendant No.2 was aware of the share of the property that was allotted to her.

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Defendant No.2 had also admitted her signature on photographs in both Ex.D1 and D2. However, she has voluntarily stated that her signatures were obtained on the pretext of they were the lease deed executed in respect of the share belonging to the defendant No.3. In view of the defendants not being able to justify their stand, and in view of the fact that documents at Exs.P1, P2 and P4 being the registered instruments, Trial Court referring to Section 92 of the Indian Evidence Act, 1872 has declined

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to accept the oral evidence of the defendants contrary to the contents of the said instruments.

¶156

The First Appellate Court while re-appreciating the evidence has concurred with the judgment and decree passed by the Trial Court. The First Appellate Court has also taken note of the fact that though a plea of financial transaction was set up by the defendants, the same has remained unsubstantiated. The plea of the defendant No.3 that she being unaware of the transaction was also negated as deed of partition was executed allotting her share. The First Appellate Court also taking note of the reference at Exs.P1 and P2 of the plaintiff being in possession of the property described in schedule 'B' property, proceeded to dismiss the appeal confirming the judgment and decree passed by the Trial Court.

¶157

Necessary to note that the suit of the plaintiff and relief sought for therein are based on the registered documents, validity of which has not been questioned or challenged till date. As rightly taken note of by the Trial

¶158

25 - NC: 2024:KHC:8739 RSA No. 1511 of 2022 C/W RSA No. 1510 of 2022

¶159

Court and the First Appellate Court in the absence of any challenge to the said documents or in the absence of production of any cogent and acceptable material evidence, the right, title and interest of the plaintiff could not be impeached. It was not available for the defendants to have entered into rectification deed in the manner dislodging the title, right and interest of the plaintiff which was conveyed by the defendant No.2 in terms of Ex.P1 and rectified thereafter as per Ex.P2.

¶160

In that view of the matter, no substantial question of

¶161

law would arise for consideration. Accordingly, appeals are dismissed.

¶162

Sd/JUDGE

¶163

RU, List No.: 2 Sl No.: 21

U J Naijanya v. Smt. Alphonsa

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U J Naijanya v. Smt. Alphonsa

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